In re Wray's Estate

• Decision Date: 03 March 1933
• Docket Number: 6998.
• Citation: 19 P.2d 1051,93 Mont. 525
• Parties: In re WRAY'S ESTATE. v. LEW et al. PARKER
• Court: Montana Supreme Court

19 P.2d 1051

93 Mont. 525

In re WRAY'S ESTATE.

PARKER v. LEW et al.

No. 6998.

Supreme Court of Montana

March 3, 1933

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Proceeding by Ruth Parker to determine heirship in the matter of the estate of Samuel L. Wray, deceased, opposed by Mabel Wray Lew and others. From an adverse judgment, plaintiff appeals.

Reversed and remanded, with directions.

M. J Lamb, of Billings, for appellant.

N. A Rotering, of Butte, for respondents.

CALLAWAY Chief Justice.

This proceeding was brought by Ruth Parker to determine heirship in the matter of the estate of Samuel L. Wray, deceased. She claims to be the daughter of the decedent, although when she was born her mother, Lydia Wray, was the wife of James Thomas Wray, an elder brother of Samuel. Later on, as we shall see Lydia married Samuel. From a judgment of the trial court holding that James and not Samuel was her father, she has appealed.

James and Samuel were members of a family of eight children. Two of their sisters, Mrs. L. W. Drew and Mrs. Victoria Cutler, come into view in the consideration of this cause. Samuel died in Butte on August 16, 1929, leaving an estate consisting of real and personal property of the value of approximately $13,500, the most of which came to him from the estate of Mrs. Drew, a widow without children, who died in Butte in 1928. In addition to his own share in the Drew estate, Samuel was entitled by assignment to the share of Mrs. Cutler. Upon the death of Samuel, his widow, Lydia, was entitled to one half of his estate; the question is where the other half should go. If appellant's position is correct, she is entitled to it.

In 1890 James and Lydia, his wife, were living upon a farm near Hay Center, Nebraska. In that year, at his brother's invitation, Samuel came to live with the family. There is testimony tending to show that after the advent of Samuel, and certainly as early as 1892, James observed a friendship between his wife and brother, which caused him to remove from the farm and to establish a home for himself and his two eldest children, David and Mabel, at Culbertson, Nebraska, some forty miles distant, after which he did not live with his wife. The two younger children, Grace and Mary, remained with their mother, who continued to live at the farm. Samuel lived there too. James was engaged in the stock business, buying and shipping cattle, horses, and hogs. He traveled extensively through Colorado, Kansas, New Mexico, and Texas, and during the years 1892 and 1893 was away from the farm continually; if he was there at all during this period, his visits were fleeting ones. The evidence indicates that eventually James and Lydia were divorced. He married again and became the father of two children by his second wife. He died in 1915.

Appellant was born on the farm September 8, 1893. From birth she lived there with her mother, two sisters (or half-sisters), Grace and Mary, and Samuel, until 1905 when the family moved to a ranch near Boxelder, Nebraska; they lived upon the latter farm until 1909. Samuel went to Hyattville, Wyoming, in 1907 or 1908, but returned to Nebraska and married Lydia on October 28, 1909. Thereupon he and his wife went to Hyattville, and it would seem that they lived there almost to the end.

When Samuel and Lydia married, appellant was sixteen years of age. During her childhood Samuel provided for her support and maintenance. In the fall of 1909 he sent her to a school in McCook, Nebraska, and paid her expenses. On the other hand. James never contributed anything to her, nor did he ever write to or otherwise communicate with her. Indeed, she saw him but once--when she was eight years old--prior to Christmas of 1909, when during the holiday season she visited her aunt Victoria Cutler and James in Kansas City, Kansas, where they maintained homes. During that visit, she testified. James, to whom she referred as her uncle, told her that she was not his daughter; he related the circumstances attending her creation; told her of his long absences, and said when he returned home late in the spring of 1893 and discovered her mother in a family way he knew positively that because of the length of time he had been gone it was impossible for him to have been responsible for her condition; he placed the blame on Samuel.

When appellant was twelve years of age. Samuel told her that he and not James was her father. He asked her if she knew it, and she told him that she did; that her sisters had told her so. He suggested that she talk to her mother about it, which she did, and her mother confirmed what Samuel had said; her mother said that she and James had been separated, possibly a year or two, before her birth.

David Wray, her brother (or half-brother), testified at length as to the business activities and whereabouts of his father, James, during the years 1892 and 1893. He knew that his father and mother were separated, but did not know the cause of it. He knew of his own knowledge that continuously during the years 1892 and 1893 his mother and Samuel were living together on the farm; his father did not visit the farm from about the 1st of August, 1892, until about April 1, 1893. About the time appellant was born, his father told him that Samuel was her father. He heard his father say that on several occasions, and in 1905 he received a letter from his father in which reference was made to the fact that Ruth was not his father's child.

By deposition Victoria Cutler testified to her knowledge of family relationships. Her brother James, to whom she referred as Tom, told her a week or two before his death that Samuel, and not he, was the father of appellant. "He told me that several times when he lay sick in Bethany Hospital; and the last time he made that statement was after the doctors had told him in my presence he could not live. He said then that he did not expect to live." She said: "My brother Samuel asked me if I knew that Ruth was his daughter, and I told him that brother Tom had told me; my brother Samuel told me that was the fact, that Ruth Parker was his daughter."

Mrs. Cutler went to Butte in May, 1928, to attend the funeral of her sister, Mrs. Drew, and was there again in May, 1930. On May 27, 1928, by an assignment in writing she conveyed all her interest in the Drew estate to Samuel and told him in substance that she wanted him to have the use of it, and if he did not use it, it was to go to appellant. Samuel said at that time that he would make a will as soon as he got Mrs. Drew's estate settled so that he would know what he had to put in the will.

Thomas M. McKinney, an attorney at law of Basin, Wyoming, testified that in November, 1929, Lydia Wray called at his office and requested him to prepare an affidavit, which he did, and the document was offered in evidence. Therein she swore that during the time she was married to James, Ruth was born but her father was not James, but Samuel, whom she (Lydia) later married; that after Ruth had reached the age of understanding, both her father, Samuel L. Wray, and affiant, her mother, informed her concerning her parentage; that of her own knowledge Samuel during his lifetime regarded Ruth as his daughter. Mr. McKinney testified further that Mrs. Wray told him that after Samuel came to live at the home of her husband they formed an attachment for each other, and that her husband left her and was gone for some two years. While he was gone she and Samuel became intimate and lived together as husband and wife, resulting in her pregnancy and the birth of Ruth.

After the holidays in 1909 appellant concluded the visit with her Kansas City relatives and went to the residence of her aunt, Mrs. Drew, in Nebraska, with whom she visited until 1910, when appellant married and went to live in Salt Lake City. Two boys were born to her.

In July, 1923, at the request of Samuel and Lydia, to whom she referred as her father and mother, she visited them at Hyattville, taking with her the two boys, and remained there until some time in 1924. Samuel then owned a ranch near Hyattville; he was also a director of the Basin State Bank at Basin, Wyoming. He treated her and the boys as his daughter and grandchildren. "That is the way he considered us and called us." He lavished presents upon the boys. He sent money to appellant regularly for birthday and Christmas. "I don't think he ever missed a birthday or Christmas," she said.

In response to a telegram she went to Butte at the time of Samuel's last illness, arriving there after his death. None of the other relatives was in Butte at that time, nor was any of them at the funeral.

None of the foregoing testimony was contradicted. There was introduced in evidence a power of attorney executed by appellant on August 20, 1929, which was acknowledged before the clerk of the district court of Big Horn county, Wyoming. This document was entitled, "In the Matter of the Estate of Mrs. L. W. Drew, also known as Mrs. L. Wray." Therein appellant recited that whereas "the above deceased died in Silver Bow county on the 7th day of May, 1928, and the undersigned, Mrs. Ruth Parker of Hyattville, Wyoming, Being informed and believing that she is one of the heirs at law of the said deceased by virtue of the fact that she is a niece," she therefore appointed R. F. Gaines, of Butte, Montana, and Thomas M. McKinney, of Basin, Wyoming, her attorneys in fact to represent her in the matter of the estate.

It is argued by counsel for the respondents that the execution of this power of attorney refutes the claim that she is the daughter of Samuel L. Wray. It is said that if Samuel L. Wray was her father, he was the heir of Mrs. Drew but appellant was not; but if she were the daughter of James,...